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IN THE COURT OF APPEALS OF IOWA No. 7-460 / 06-0556 Filed October 24, 2007

IN RE THE DETENTION OF DANIEL JOSEPH SCOTT DANIEL JOSEPH SCOTT, Respondent-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Amanda P. Potterfield (trial) and Douglas S. Russell (retrial), Judges.

The respondent appeals following a jury verdict that found him to be a sexually violent predator. AFFIRMED.

Mark Smith, State Appellate Defender, and Michael Adams and Matthew Sheeley, Assistant Public Defenders, for appellant. Thomas J. Miller, Attorney General, Darrel Mullins and Andrew Prosser, Assistant Attorneys General, Janet Lyness, County Attorney, and J. Patrick White, Assistant County Attorney, for appellee State.

Heard by Zimmer, P.J., Eisenhauer, J., and Schechtman, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).

2 ZIMMER, P.J. Daniel Joseph Scott appeals from his commitment as a sexually violent predator under Iowa Code chapter 229A (2005). He contends the jury's findings that he is predisposed to commit sexually violent offenses and that he is likely to engage in predatory acts constituting sexually violent offenses if not confined are not supported by substantial evidence and are contrary to the weight of the evidence. Scott also claims it would be a denial of due process to retry him following a hung jury because the State demanded a jury trial and the mistrial was attributed solely to its failure to convince the jury to commit him as a sexually violent predator. Finding no merit in these claims, we affirm the district court. I. Background Facts and Proceedings. On June 14, 2005, the State filed a petition to commit Scott as a sexually violent predator. On June 20, 2005, the district court found probable cause that Scott was a sexually violent predator. The State demanded a jury trial in these proceedings pursuant to Iowa Code section 229A.7(4), 1 and trial commenced on December 12, 2005. The record made at trial reveals that in 1984 twenty-seven-year-old Scott took a customer back to his tow-service business and forced her to perform oral sex upon him. He pled guilty to third-degree kidnapping and sexual abuse in exchange for receiving immunity from other sexual assaults that were committed around this same time. Scott was released from prison in the fall of 1989.

1

Iowa Code section 229A.7(4) provides that a respondent, the attorney general or the court may demand a jury trial.

3 The following March, thirty-three-year-old Scott assaulted a female acquaintance by grabbing her breast and forcing her to place her hand on his exposed penis while he gave her a ride home. He was convicted of assault with intent to commit sexual abuse and sentenced to prison. After his release from prison, Scott lost his left leg in a motorcycle accident and began working as a taxicab driver. On September 2, 1997, forty-year-old Scott sexually assaulted a female passenger by grabbing her breasts in his cab. The next day, he assaulted another female passenger in a similar manner. Scott was convicted of assault with intent to commit sexual abuse and third-degree sexual abuse as an habitual offender. The trial record also reveals Scott has an extensive history of non-sexual criminal acts commencing with theft of Christmas lights at age eleven. By 1982, he had committed seven felony-grade thefts. By the time of his first sexual

assault conviction, Scott estimated he had written fifty to seventy fraudulent checks. Over the course of his life, Scott has committed nearly 100 incidents of theft, forgery, fraudulent practice, harassment and disorderly conduct. At trial, the State's expert, Dr. Dennis Doren, testified that Scott suffered from an antisocial personality disorder and further concluded that this disorder predisposed him to commit sexually violent offenses. Dr. Doren testified that Scott had normal sexual desires but his disorder leads him to "take what he wants, when he wants." Further, Dr. Doren explained, Scott takes a "damn the torpedoes" approach concerning sexual affairs, meaning if he decides he wants to have sex that night then he will have a sexual encounter whether or not a woman consents. Dr. Doren opined that Scott had serious difficulty controlling

4 his sexually dangerous behavior and concluded it was more likely than not that Scott will commit another sex offense within five years. The respondent called Dr. Craig Rypma and Dr. Steven Hart as expert witnesses. Dr. Rypma agreed that Scott suffered from an antisocial personality disorder. However, he disagreed that this disorder predisposed Scott to commit sexual offenses in particular. Rather, Dr. Rypma and Dr. Hart described Scott as a "typical criminal," "con man," and a "run-of-the-mill criminal." After considering the evidence presented, the jury failed to reach a unanimous verdict that Scott was a sexually violent predator. As a result, a mistrial was declared on December 16, 2005, and a new trial was scheduled pursuant to Iowa Code section 229A.7(7). Scott moved to dismiss the petition because the State had demanded a jury but failed to convince the jury members that he was a sexually violent predator. Scott's motion to dismiss and request for an immediate discharge were denied on February 6, 2006. On February 20, 2006, a second jury trial commenced. 2 Scott moved for a directed verdict at the conclusion of the State's case and at the conclusion of his own case, arguing that the State failed to present substantial evidence that his antisocial personality disorder "predisposed him to commit sexually violent offenses to a degree which would constitute a menace to the health and safety and welfare of others" and that he was "more likely than not to reoffend if not confined to a secure facility." The trial court denied his motions and submitted the case to the jury. The jury found that Scott was a sexually violent predator.

2

Following the hung jury, the State moved to withdraw its jury demand. Scott resisted the motion, and it was denied.

5 Scott's motions for judgment notwithstanding the verdict and for a new trial were denied on March 23, 2006. Scott appeals, asserting: (1) the jury's finding that he is predisposed to commit sexually violent offenses is not supported by substantial evidence, (2) the jury's finding that he is likely to engage in predatory acts constituting sexually violent offenses if not confined is not supported by substantial evidence, (3) the district court erred in denying his motion to dismiss because retrying him following a hung jury was fundamentally unfair and violated his right to due process, and (4) his motion for new trial should have been sustained because the jury's verdict is contrary to the weight of the evidence. II. Motion for Judgment Notwithstanding the Verdict. A. Scope of review. We review the district court's denial of Scott's

motion for judgment notwithstanding the verdict for correction of errors at law. In re Det. of Betsworth, 711 N.W.2d 280, 286 (Iowa 2006). We evaluate whether substantial evidence exists to support the State's case. "Evidence is substantial when a reasonable mind would accept it as adequate to reach a conclusion." In re Det. of Holtz, 653 N.W.2d 613, 620 (Iowa Ct. App. 2002). evidence in the light most favorable to the nonmoving party. Id. B. Discussion. Scott first contends the jury's finding that he is predisposed to commit sexually violent offenses is not supported by substantial evidence. Pursuant to Iowa Code section 229A.2(11), a sexually violent predator is a person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality which We view the

6 makes the person likely to engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility. In order to prove that Scott had a "mental abnormality," the State had to prove that his condition "predispos[es] [him] to commit sexually violent offenses to a degree which would constitute a menace to the health and safety of others." Iowa Code

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